Jack Smith Appeals Judge’s Ruling Finding His Appointment Unconstitutional

Special Counsel Jack Smith notified a judge Wednesday that he is appealing her decision to dismiss the classified documents case against former President Donald Trump.

Judge Aileen Cannon found Monday that Smith’s appointment violated the Appointments Clause of the United States Constitution and granted Trump’s motion to dismiss the case. Smith signaled he would appeal shortly after the ruling, and he filed his official notice on Wednesday.

“The United States of America hereby gives notice that it appeals to the United States Court of Appeals for the Eleventh Circuit from the order of the District Court entered on July 15, 2024,” the notice states.

A spokesperson for Smith’s office said Monday that the dismissal of the case “deviates from the uniform conclusion of all previous courts to have considered the issue that the Attorney General is statutorily authorized to appoint a Special Counsel.”

“The Justice Department has authorized the Special Counsel to appeal the court’s order,” the spokesperson said.

Cannon held that Attorney General Merrick Garland did not have the authority to appoint Smith, who previously was a private citizen neither appointed by the president nor confirmed by the Senate. Smith’s prosecution of Trump “breaches two structural cornerstones of our constitutional scheme — the role of Congress in the appointment of constitutional officers, and the role of Congress in authorizing expenditures by law,” she wrote.

“Both the Appointments and Appropriations challenges as framed in the Motion raise the following threshold question: is there a statute in the United States Code that authorizes the appointment of Special Counsel Smith to conduct this prosecution?” Cannon wrote. “After careful study of this seminal issue, the answer is no.”

Cannon held hearings on the issue of Smith’s appointment June. Her ruling cites Justice Clarence Thomas’ concurring opinion in the Supreme Court’s presidential immunity case, where he suggested Smith’s appointment was unconstitutional.

“If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution,” Thomas wrote in his July 1 concurring opinion. “A private citizen cannot criminally prosecute anyone, let alone a former President.”